In a war court first, defense lawyers for the accused architect of al Qaidas USS Cole bombing are asking the military judge to broadcast the Guantánamo death-penalty trial to the world not just to Pentagon-controlled viewing rooms in suburban Washington, D.C., and Virginia.
Broadcasts would let the public decide for themselves if this is truly a legitimate proceeding entitled to respect as the prosecutor argues, or is it a sham, a kangaroo court as the defense and many observers suggest, the lawyers argued in their 14-page brief filed Friday.
They ask the judge, Army Col. James L. Pohl, to order the Pentagon to provide video feeds of the Guantánamo trial of Abd al Rahim al Nashiri to C-SPAN, FOX, CNN, ABC, NBC and CBS. Pohl has authorized closed-circuit broadcasts to a viewing room for the public and media at Fort Meade in Maryland and for families of the USS Cole victims at the U.S. Navy base in Norfolk, Va.
Suicide bombers blew up a bomb-laden skiff alongside the warship in the port of Aden, Yemen, in October 2000, killing 17 U.S. sailors. CIA agents captured Nashiri in the United Arab Emirates in 2002 and then moved him to Guantánamo for trial in 2006, after secret interrogations using waterboarding, a revving power drill and the cocking of a pistol near his hooded head to break him.
In earlier war crimes trials at Guantánamo, only Pentagon-approved reporters, legal observers and victims could watch by taking military flights to the remote U.S. Navy base. The Defense Department decided to widen the viewership by setting up the special viewing rooms and getting a court order from Pohl to beam the proceedings to U.S. soil.
Defense Department workers control the sites and forbid photography and audio recording, under rules that are meant to mirror military commission decorum at the legal compound in Guantánamo.
At the Pentagon, lawyers said they patterned the system after a remote viewing room for victim family members that U.S. District Judge Leonie Brinkema set up in the Eastern District of Virginia for the federal trial of so-called 20th hijacker Zacarias Moussaoui, convicted as an al Qaida accomplice in the Sept. 11 terror attacks.
To date, it has been the departments position that a version of the federal courts standard is the appropriate one, in terms of access for the media and members of the public, said Army Lt. Col. Todd Breasseale.
Nashiris lawyer, Richard Kammen, a veteran of federal court cases, said the rules are different enough at Guantánamo that the world should be watching rather than relying upon a speaking tour by the chief prosecutor trying to rehabilitate the image of military commissions in the U.S. legal community.
If the evidence against Nashiri is hearsay or double hearsay or triple hearsay, the world ought to at least know that, Kammen said Friday. Why should only people on the East Coast be able to see this? he added. If we really believe this system is so fair and is upholding American ideals, why should we try and hide it?
At C-SPAN Friday, general counsel Bruce Collins said there has been a precedent in his organization of broadcasting military legal proceedings a July 1991 session of the United States Court of Military Appeals involving a challenge to a death penalty case.
At he time, he said, the chief judge, Robinson Everett, approved the broadcasts at what is now called the Court of Appeals for the Armed Forces. C-SPAN mostly airs policy discussions, Collins noted, adding for example that while other organizations did broadcast the O.J. Simpson murder trial, his organization did not.
The editorial directors of C-SPAN would decide how much if any of a Nashiri commission to air, he said.
But, as a person who is concerned about the right of the news media to gain access to public proceedings, I would tell you that wed want the right to broadcast, Collins said. We would probably do some big chunks of it. Others would do standard news package use of the video, maybe short clips. To the extent its like a trial, I know that historically its hard for us to do whole trials.